Congressional Release of Classified Information and the Speech or Debate Clause

At Foreign Policy, Professor Bruce Ackerman asks “should members of Congress use their special constitutional powers of free speech to force the facts about the [NSA surveillance program] out into the open?” Ackerman notes that under the Speech or Debate Clause, members of Congress “cannot be prosecuted for reading classified material into the public record– and it is up to them, and them alone, to decide what is worth talking about.” He therefore proposes that individual members of Congress who oppose the surveillance program, such as Senator Ron Wyden, a member of the Senate Select Committee on Intelligence, disclose such classified information regarding the surveillance program as they believe the public needs to know. Ackerman dramatically concludes “[t]he moment of truth is now.”

Ackerman is certainly correct that the Speech or Debate Clause immunizes members of Congress from prosecution for disclosing classified information on the floor or in committee hearings. See Gravel v. U.S., 408 U.S. 606 (1972). As he also recognizes, however, members are not protected against congressional discipline, up to and including expulsion, for revealing classified information without permission.

What Ackerman overlooks is that both the House and Senate have established procedures for releasing classified information. Wyden, for example, could ask SSCI to disclose information regarding the NSA surveillance program under section 8 of S. Res. 400, which provides that SSCI “may, subject to the provisions of this section, disclose publicly any information in the possession of such committee after a determination by such committee that the public interest would be served by such disclosure.” If SSCI votes for public disclosure, it must then notify and consult with the Senate Majority and Minority Leaders prior to notifying the President of the vote. Once the President has been notified and five days have elapsed, SSCI may release the information to the public unless “the President, personally in writing, notifies the committee that he objects to the disclosure of such information, provides his reasons therefore, and certifies that the threat to the national interest of the United States posed by such disclosure is of such gravity that it outweighs any public interest in the disclosure.” In that case, the Senate itself must vote before disclosure may be made.

Ackerman seems to be suggesting that Wyden or other members circumvent this procedure and unilaterally release classified information to the public. This is a bad idea. If the Senate or House allows one member to do this with impunity, nothing would prevent other members from making classified disclosures on the same or other topics. Eventually someone will release information that damages national security and/or provokes a public backlash, thereby giving the executive branch a justification for restricting congressional access to classified information.

Although the congressional procedures for releasing classified information have rarely (if ever) been used, there is nothing preventing Wyden or a like-minded member from seeking to use them now. Certainly such an attempt must be made before there could be any justification for a unilateral disclosure. If there is a moment for unilateral disclosure, in other words, it is not now.

It should be noted, however that SSCI’s draconian interpretation of its secrecy rules might deter Wyden (or others) from publicly disclosing even the fact of an attempt to invoke section 8 of S. Res. 400. This could prevent him from building needed public support for his efforts. Ackerman and others concerned with excessive government secrecy might more profitably focus on that issue rather than advocate for unilateral disclosure that could undermine the entire congressional system for handling classified information.